Posts Tagged ‘victim of medical malpractice’
Private duty nurses fall into a special category. They are licensed, trained nurses, who work with one client in a hospital, nursing home, or alternative setting. They may be independent contractors, and work through a referral agency, or they m
ay have their own nursing service.
If you were the victim of medical malpractice by a private duty nurse, you may find it difficult to pin down liability or recover your damages. When a private duty nurse works through a referral agency, the agency’s only responsibility may be to verify that the nurse is licensed by the state. Legally, the private duty nurse is your employee. You hire the nurse, and he or she works directly for you.
Since private duty nurses are not employees of the referral agency, your doctor, or the hospital, in most instances, they cannot be held responsible for the nurse’s malpractice. Furthermore, in some states, private duty nurses are not required to carry medical malpractice insurance or assets to satisfy a malpractice award. You might be able to file a claim against the referral agency, if you can show that it failed to screen its nurses properly and sent you someone, who was unqualified or had a bad record. But, as a rule, your recourse may be limited, if you are the victim of medical malpractice by a private duty nurse you have hired.
Every year, thousands of victims of malpractice suffer, by not getting the compensation they deserve. If you have been a victim of malpractice by a private duty nurse, do not hesitate to contact JD.MD, Inc., today.
We can provide you with a Comprehensive Screening Report, an initial evaluation of your case, by a qualified Nursing Reviewer. Contact our office at 1-800-225-5363 and gain some peace of mind.
Staff physicians, or attending physicians, are doctors, who maintain their own offices and go to the hospital to treat patients. The doctor goes to the hospital in the morning, visits his patients, may perform surgery, and then leaves. A large hos
pital may have 200 to 300 physicians on its staff. So, it is impossible for
the hospital to have someone following each staff physician around to make sure they do not commit medical malpractice.
But, a hospital is not just a building where doctors treat their patients. It cannot ignore evidence that the doctors it allows to use its facilities are unqualified or committing malpractice. The hospital has a responsibility to ensure that a patient does not become the victim of medical malpractice by doctors it allows to work there. The hospital may be liable if it did any of the following:
1. Granted a doctor privileges to do things he was not qualified to do.
2. Failed to monitor his performance from time to time.
3. Failed to take action to protect his patients, if it became aware, or should have become aware, he was practicing dangerous medicine or committing medical malpractice.
4. Failed to set high standards of performance for its medical staff and permitted substandard practice.
5. Did not require the doctor to call in a consultant, if a patient’s medical problems were beyond his training or ability.
6. Did not require the doctor to transfer his patient to another hospital, if it did not have the equipment or specialists to treat the patient’s problem.
Do you see how these add up? The hospital is not responsible for individual acts of independent, staff physicians. It is not responsible for what your doctor did to you, unless it allowed him to do things he was not qualified to do, or failed to take action when it knew that he was practicing dangerous medicine or getting hit with numerous medical malpractice suits. But, as part of the hospital’s general responsibility to protect patients, and provide for their well-being, it has an obligation to see that only qualified and competent physicians are permitted to treat patients and to have adequate equipment with which to treat their patients.
In a California case, a judge awarded a large sum against a hospital, because it had permitted a surgeon to do 36 unnecessary surgeries, falsify medical records, avoid consultations, and obtain consents to surgery by deceit and intimidation over a period of 9 years. During that time, the doctor was also sued for medical malpractice 26 times, but the hospital never investigated him or took any action to protect his patients.
Date of the Occurrence
This is the date the malpractice actually occurred. You were the victim of medical malpractice during surgery or in the emergency department of a hospital. There is no difficulty in determining the Date of the Occurrence. On the other hand, if your mother went to a doctor complaining of a lump in her breast, and he saw her several times over a period of a year but failed to do a diagnostic work-up that would have revealed cancer, the date of the occurrence could be difficult to determine. Or, if you had a series of spinal manipulations for a bad back, you cannot be sure which one caused your fractured vertebrae.
Date of Discovery
Often, it is difficult to determine precisely when malpractice and injury occurred. In some cases, it is not even discovered until after the time limit, counting from the date of the occurrence, has run out. Therefore, most states use another measure called the Date of Discovery. This is the date on which a reasonable person should have discovered that he or she was the victim of malpractice.
In most medical malpractice or dental malpractice cases, the victims do not realize they have been the victims of malpractice for a long time. They tend to think their complaints are normal and usual complications of their disease or treatment. In fact, it is estimated that almost 90% of malpractice victims do not file suit, because they never realize their injuries are due to someone’s negligence.
A Georgia man suffered a serious back injury while working on a construction site. The emergency room doctors were surprised to see a surgical clamp on the x-rays. When the doctors questioned the patient, he told them he had had stomach surgery in Delaware 20 years earlier. He also told them he had suffered from chronic stomach trouble ever since, but it had not been bad enough for him to consult a doctor. He discovered the malpractice, and the clock started running when the doctor in Georgia told him about the instrument left in his abdomen. He sued and won.
Let us assume the man in Georgia had had so much discomfort from the clamp in his abdomen, that he had gone to another doctor a year later, and that doctor said, “I don’t know why you are still having stomach trouble. Let’s take an x-ray.” But, the patient had ignored the doctor’s advice and did not do anything until later. The court would have said that he should reasonably have discovered it sooner when it would have shown up on an x-ray and failure to do so was his own fault. His complaint would be thrown out, because it was way over the time limit.
At the other extreme, a Pennsylvania woman tried to sue a plastic surgeon for medical malpractice one week after the statute of limitations had run, because she decided that she did not like the rhinoplasty he had done. The court ruled there was no valid excuse for not having moved sooner. She had been looking at her nose every day since her surgery and had ample opportunity to make up her mind. Her case was barred.
The legal term for this is Laches, and it means that if you sit on your legal rights for a long time and do not move to enforce them, you lose them. Once you have reason to suspect medical malpractice or dental malpractice, you must move, if only to find out whether your suspicions are correct.
Before you start a malpractice case, you have to know if the time limit has run out. Our laws recognize that it is not fair to make people live in fear that someone may sue them for a long ago deed or mistake. Every state has what are known as Sta
tutes of Limitation, time limits for filing different types of civil actions.
All states have different Statutes of Limitation for medical malpractice and dental malpractice lawsuits. After a certain number of months or years, you can no longer sue the doctor or the hospital, no matter how bad the malpractice.
Should You File Early and Not Wait for the Deadline?
Yes. State deadlines are last-chance opportunities. There are many reasons why you should consult a lawyer and file your lawsuit, as soon as you are reasonably sure that you have been the victim of medical malpractice or dental malpractice. Even if you are not sure about the malpractice, and are within the time limit for your state, it is safer to talk to a lawyer and let her or him decide whether delay is advisable. The following are a few reasons for moving promptly on your case:
1. It protects you against having your case dismissed, because you missed the deadline. In some states, the deadline can be extended by a judge on a showing of good reason for the delay. In most states, if you go even one day over the deadline, you are out of luck.
2. It allows your lawyer time to discover what happened. In a Utah case, a woman suffered a surgical injury to the sciatic nerve that runs down the back of the leg. She considered her options for a long time. Finally, just before the time limit ran out, she consulted a lawyer, who filed a lawsuit against the surgeon. When the lawyer got the hospital records a month later, he learned that a hospital employee was to blame, and there was no case against the surgeon. It was too late to sue the hospital, and the plaintiff received nothing.
3. In some states, until you file your lawsuit, you cannot obtain all the facts and medical records, such as x-rays and doctor’s office records, to learn what really happened. It takes time to obtain documents and evidence.
4. In most instances, insurance companies are only concerned with cases that have been filed. They recognize these cases as serious claims and are more apt to settle. An unfiled lawsuit is an empty threat that goes into the inactive file and is ignored.
5. It allows you plenty of time to find the medical expert witness or dental expert witness you need. A New York lawyer had a strong case involving medical malpractice by a neurologist. In New York, a case can take a long time to come to trial, so the lawyer filed it away. Early in August, the court notified the lawyer that his case would come to trial just before Labor Day. When he started checking his files, preparing for the trial, he realized that he had never hired a medical expert witness. In the two or three weeks he had left, he started frantically looking for a qualified expert, who could testify on his client’s behalf. He was finally able to contact three neurologists, who agreed to help him, but none of them were available over the Labor Day holiday, When he went to court without a medical expert witness, the judge dismissed his case With Prejudice, meaning that it could not ever be brought again. The lawyer was sued by his client for legal malpractice.
6. Memories fade, witnesses move, and essential records may be lost or destroyed. The records and evidence necessary to your case should be gathered
as early as possible. A witness statement, made soon after the injury, is more valuable than one made years later.
7. Scars fade, pain subsides, and people adjust to their disabilities. With the passage of time, most injuries, even death, have less impact on a jury. Jurors are more impressed by imagining the suffering and problems facing an injured person, than by hearing the defense lawyers tell them that you have adjusted to your disability, are holding a job, driving a car, and have a happy family life.
8. Many medical malpractice cases and dental malpractice cases are settled instead of going to trial, and settlement negotiations can take a long time. If you wait to file your lawsuit until after the settlement negotiations, your payment could be delayed. But, if your lawsuit is filed before your lawyer begins negotiating with defense lawyers, it is in the pipeline, and he can engage in settlement negotiations, without delaying the trial if negotiations break down.
You became dissatisfied with your doctor and went to another doctor without telling him. It happens all the time. Or, you signed yourself out of the hospital, and the nurses and doctor made you sign a statement t
hat you were leaving of your own accord and against the doctor’s advice. If you do that and terminate your relationship with a doctor or a hospital, you have released them. They are no longer responsible for what happens to you. You become responsible for everything that happens to you from that moment onward, including aggravation or complications of your previous injuries because of failure to follow-up with your medical care.
However, it is important to note that a release, whether just implied by your actions or actually written out, only releases the doctor or hospital for whatever happens in the future. It does not cancel out any responsibility for what has already been done to you. If you go to another doctor or hospital, they become responsible for everything that is done from the time they accept you as a patient.
Just because you signed a release does not mean you have given up any of your rights for what was done to you before you signed the release. If you are asked to sign a release for things that have already happened, it is illegal, and the courts will not recognize it.
What if you are asked to sign a release before you are treated? That is only good for getting your consent to risky treatment, as already explained in the post on assumption of the risk, and it cannot be used as an excuse for medical malpractice or dental malpractice, because no one can ask you to sign away your protection under the law.
The exception to this is a consent to submit any dispute or malpractice claim to arbitration, instead of going to court. Some states recognize and enforce such agreements. Others consider them an infringement of your constitutional right to have your case decided by a jury of your peers. You will have to check with your lawyer to find out whether arbitration agreements are legal and binding in your state.
It is important for you to know that the release an insurance company adjuster might ask you to sign, in return for a quick settlement of your claim, is different and is legally binding. That is because it has nothing to do with the doctor’s treatment and is a contract
between you and the insurance company. You are getting valuable consideration in the form of a quick settlement of your claim, in return for your agreement to settle for a smaller amount. Since the insurance company is not the person who caused your injuries, it does not have to justify its actions.
The Rule Is: If you believe that you have been the victim of medical malpractice or dental malpractice, do not sign anything without your lawyer’s approval. If you do not have a lawyer, do not sign anything until you do and he or she approves.